for one’s personal library, then returning the original to the public library,” and the third because
it “amounted to creating an unauthorized derivative work ... namely a commercial-free copy that
would reduce the copyright owner’s income from his original program, since ‘free’ television
programs are financed by the purchase of commercials by advertisers.”^1816 Thus, according to
Judge Posner, the Supreme Court in Sony was confronted with a situation in which the video
recorder “was being used for a mixture of infringing and noninfringing uses and the Court
thought that Sony could not demix them because once Sony sold the recorder it lost all control
over its use.”^1817
Having characterized the Sony case thusly, Judge Posner turned to an application of its
principles to the Aimster service. He first rejected some extreme interpretations of those
principles put forward by the parties. Specifically, he rejected the RIAA’s argument that Sony is
inapplicable to services and that, where services are concerned, “the test is merely whether the
provider knows it’s being used to infringe copyright.”^1818 He noted that although knowledge that
a service is being used for infringing purposes is a factor to be considered in contributory
infringement, it cannot be dispositive, else services like AOL’s instant messaging service would
be illegal just because some use it for infringing purposes.^1819 Moreover, he noted that in the
Sony case, the Supreme Court acknowledged that 25% of Betamax users were fast forwarding
through commercials, which, as noted, Judge Posner believed to constitute an infringing use, yet
nevertheless there was no contributory infringement.^1820 Judge Posner thus concluded, “We
therefore agree with Professor Goldstein that the Ninth Circuit erred in A&M Records, Inc. v.
Napster, Inc., 239 F.3d 1004, 1020 (9th Cir. 2001), in suggesting that actual knowledge of
specific infringing uses is a sufficient condition for deeming a facilitator a contributor
infringer.”^1821
Conversely, Judge Posner rejected Aimster’s argument that any showing that its service
could be used in noninfringing ways is sufficient to avoid contributory liability. “Were that the
law, the seller of a product or service used solely to facilitate copyright infringement, though it
was capable in principle of noninfringing uses, would be immune from liability for contributory
(^1816) Id. at 647-48. The ruling that recording for commercial skipping constitutes the making of an unauthorized
derivative work is curious. First, it seems novel to judge the legality of a reproduced work on the subsequent
potential use that a user may put the work to. Second, the work that was actually fixed in the tangible medium
by the video recorder was the entire television program, including the commercials without modification. It is
only upon playback that the commercials were skipped by fast forwarding through them, and one would have to
argue that the transient display produced on the television screen as the commercials run by at faster speed is
itself a derivative work. And even if a derivative work, it is unclear why such work might not be a fair use, at
least when done by a private viewer to enhance enjoyment of the program.
(^1817) Id. at 648.
(^1818) Id.
(^1819) Id.
(^1820) Id. at 649.
(^1821) Id. (citing 2 Paul Goldstein, Copyright § 6.1.2, p. 6:12-1 (2d ed. 2003)).